delivered the opinion of the court:
Plaintiff, Phillip J. Gillespie, was allegedly injured when the hood of a United Parcel Service (UPS) van he was servicing dropped on his back. Plaintiff brought suit against defendant, Chrysler Motors Corporation, alleging that a defective hood hinge manufactured by defendant and sold to UPS, which broke and caused the hood to fall on plaintiff, was the cause of his back injuries. After the presentation of all the evidence at trial, the circuit court of St. Clair County directed a verdict in plaintiff’s favor on the issue of whether the hinge was unreasonably dangerous. The jury, however, returned a general verdict in defendant’s favor after finding that the unreasonably dangerous hood hinge was not a proximate cause of plaintiff’s injuries. The circuit court then granted plaintiff’s post-trial motion for a new trial, holding that prejudicial error had occurred when defendant improperly impeached plaintiff with a prior statement and used the prior statement during its opening statement and closing argument. The appellate court affirmed the circuit court’s order for a new trial. (
PLAINTIFF’S MEDICAL HISTORY
Plaintiff was an auto mechanic who worked in a UPS facility. In February 1981, plaintiff suffered a lower back strain when he lifted a heavy rear spring on a UPS van. This injury was so severe that plaintiff spent five days in the hospital and missed two weeks of work. On March 7, 1981, plaintiff visited his treating physician, Dr. John Jemsek, for a follow-up examination. At this time Dr. Jemsek’s nurse, Karen O’Dell, made a notation in plaintiff’s medical record that “when he gets up in the truck he has to get up on his knees and pull himself up.”
On March 9, 1981, plaintiff claimed that he had raised the hood of a UPS van to perform maintenance work. He noticed that the springs on one of the hinges were missing. While he was endeavoring to replace them, the rivet in the hinge broke, causing the hood to fall against plaintiff’s back and pin him under the hood. Plaintiff was taken to the hospital, but was discharged later that evening. After examination and treatment by Dr. Jemsek, plaintiff missed a week of work. Plaintiff also saw a second physician, Dr. Gaylin Lack, on May 15, 1981, in connection with injuries plaintiff suffered after lifting another rear spring, similar to what occurred in February. Plaintiff claims the March 9 accident is the cause of his severe back injuries.
THE TESTIMONY AT TRIAL
During the trial, after plaintiff had rested his case, defendant took plaintiff’s evidence deposition in the judge’s chambers. The following exchange occurred:
“Q. Do you remember telling anybody on March 7th that when you get up in the truck that you have to get up on your knees and pull yourself up?
A. Not that I recall.”
Plaintiff's evidence deposition was read to the jury without objection.
Dr. Jemsek’s deposition was taken in a similar fashion. His testimony revealed that, prior to plaintiff’s back problems in 1981, he had intermittently treated plaintiff for back pain from April 1975 through June 1977. During the course of questioning Dr. Jemsek, plaintiff objected to any testimony concerning the nurse’s note; the trial court sustained the objections on hearsay grounds. Therefore, any direct references to the nurse’s note were not read to the jury. The relevant portion of the deposition, with the material excluded by the trial court in italics, is as follows:
“Q. Doctor, let me show you what I have ***. Could you tell me what this is a copy of?
A. This is a copy of my history and physical *** when [plaintiff] was admitted on the 17th of February, 1981. ***
Q. What history did you obtain on that occasion?
A. Well, he came into the office on the 16th and he was complaining about severe pain in his lower back and upper thighs and with difficulty in getting up and down. He said this all started on the 13th of February, but then when it became worse then I put him in the hospital. He said he could hardly get up and down. He had to crawl instead of walk, and I felt he had an inflammation of the nerves of his. back and legs, and so he was put in the hospital. ***
Q. *** [0]n February 16, 1981, *** [w]hat were the result[s] of your examination [of plaintiff]?
A. Okay, then he had a great deal of tenderness, especially in the upper and medial thighs. Reflexes, however, were normal, as well as the knee jerks and muscle tone and strength. It was just when he tried to get out of bed he had difficulty in getting up without sliding one foot out, then getting the other foot out. He couldn’t get out of bed abruptly and he had a great deal of difficulty raising both legs without a great deal of pain in the upper thighs. ***
Q. Was he released to return to work under any treatment, either medication or exercises?
A. He was just on the Flexeril ***. I did see him on the 7th of March. At that time he was checked in the office and he said he was fine as long as he was sitting or lying down, but when he tries to get up and move around, he had a little trouble. And he had to flex his knees, he said, when he got into the truck. So he was limping around. ***
* •* *
Q. *** [U]nder the entry [in your records] of March 7, [1981], the entry says ‘when he gets up in the truck he has to get up on his knees and pull himself up’?
A. I mentioned that already.
MR. COOK [plaintiffs attorney]: Objection. Leading form of the question.
Q. Is that a verbatim quote from Mr. Gillespie or are you paraphrasing his condition?
A. Well, evidently, this is a note that my nurse got and then I put down my impression there by putting down ‘limping around.’
* * *
Q. Doctor, with regard to the comment, ‘He was practically crawling because of pain,’ taking that observation in conjunction with the nurse’s note that he had to pull himself up into the truck, did you make any connection between the two in terms of how he was responding to treatment or care during this time from the 17th up to the 7th of March?
MR. COOK: Objection [withdrawn when deposition was read to jury], form of the question.
A. We just treated him. He got well.” (Emphasis added.)
As just noted, during the deposition, plaintiff objected to the form of this final question before Dr. Jemsek answered. However, plaintiff withdrew the objection to allow the jury to hear this testimony, admittedly because plaintiff’s counsel viewed the doctor’s answer as favorable, in that the doctor said that plaintiff “got well.”
The jury also heard the evidence deposition of Dr. Lack, which also contained a statement regarding the nurse’s note:
“Q. Did he indicate to you that on March 7, 1981, approximately two days before he allegedly sustained an injury in this case, that he had reported to Dr. Jemsek’s office and gave the nurse the history that as long as he was sitting or lying he was okay, but when he tries to get up and move around he has a lot of trouble; when he gets up in the truck he has to get up on his knees and pull himself up, and Dr. Jemsek related he was limping? Did he relate that to you?
A. No, I don’t have a recollection or a documentation of that history.”
Plaintiff did not object to this question during the deposition, and did not raise the issue when he used Dr. Lack’s deposition in his case in chief.
Defendant also made reference to the note during closing argument, eliciting an objection from plaintiff. The trial court sustained the objection and instructed the jury that statements of counsel are not evidence.
Plaintiff testified that after the hood fell on him, he called for help, and two co-workers assisted him. Defendant called to the stand six of the seven other UPS workers who had been on duty at the facility where plaintiff worked at the time the accident allegedly occurred. All six denied that plaintiff called for help or that they had helped lift the hood off of plaintiff. Plaintiff did present evidence to indicate that the seventh employee, Kevin Crouch, had been one of the two persons who had removed the hood from plaintiff’s back. However, Crouch had moved out of State, and was unavailable to testify because he was beyond plaintiff’s subpoena power. Defendant’s attorney used the unavailability of Crouch to defendant’s advantage when he stated the following during closing: “I didn’t hear an investigator take the stand and say, under oath, we looked all over for Kevin Crouch and couldn’t find him.” Plaintiff objected to this statement, but the trial judge overruled the objection.
After the jury returned a verdict in favor of defendant, plaintiff moved for a new trial. The trial court granted this motion, concluding that defendant’s asking whether plaintiff had made the statement contained in the nurse’s note was improper because defendant failed to prove the inconsistent statement contained in the nurse’s note by calling the nurse to testify, and that this, combined with defendant’s references to the nurse’s note in opening statement and closing argument, constituted error so prejudicial that it warranted a new trial.
THE APPELLATE COURT OPINION
The appellate court, in affirming the trial court’s order granting a new trial, first noted that a reviewing court will not overturn a decision on a motion for a new trial unless the trial court abused its discretion. (
Specifically, the appellate court disagreed with defendant’s contention that plaintiff, by failing to object at trial to the references to the nurse’s note, had waived his right to raise this issue on appeal. The court explained that a court may review errors where a party made no objection to ensure a fair trial and to protect the judicial process from deterioration. (
The appellate court also disagreed with defendant’s contention that, even if its references to the note were error, the error was harmless. The court held that the nurse’s note was not merely cumulative evidence. Particularly, the court distinguished Dr. Jemsek’s statement that plaintiff had to “flex his knees *** when he got into the truck” from the nurse’s statement that when plaintiff “gets up in the truck he has to get up on his knees and pull himself up.” The court stated that the former characterization of plaintiff’s condition connoted much less disability than the latter. (
ANALYSIS
We disagree with the reasoning of the appellate court, and therefore reverse. We hold that plaintiff waived his claims of prejudicial error when he failed to object to defendant’s references to the nurse’s note during the trial. We further hold that, because any error which resulted from any references to the nurse’s note was harmless, the trial judge’s grant of a new trial was an abuse of discretion. We also hold that, while the defendant’s reference to plaintiff’s failure to call a certain witness was improper, in light of the rest of the evidence, this misconduct was not grievous enough to warrant a new trial.
Plaintiff’s argument turns on his contention that he had no reason to object to defendant’s remarks regarding the nurse’s note because he expected defendant to call Dr. Jemsek’s nurse as a witness to authenticate the contents of the note. Both the trial judge and the appellate court held that defendant should have called Dr. Jemsek’s nurse, Ms. O’Dell, because once defendant asked plaintiff about the prior inconsistent statement in the nurse’s note, it was required to offer proof of the alleged impeaching statements. (
Further, plaintiff’s withdrawal of the objection in Dr. Jemsek’s deposition reveals a calculated strategy for the jury to hear particular references to the nurse’s note. Even if a party objects to certain evidence, if he fails to object to similar evidence that the trial court admitted without objection, he waives any claim that the evidence to which he did object was admitted erroneously. (People v. Allen (1959),
The appellate court, however, was correct in noting that this court recognizes an exception to the doctrine requiring a party to object to an error during trial in order to preserve it for review. (
This court first applied a plain error type of review standard in a civil case in Belfield v. Coop (1956),
“If prejudicial arguments are made without objection of counsel or interference of the trial court to the extent that the parties litigant cannot receive a fair trial and the judicial process stand without deterioration, then upon review this court may consider such assignments of error, even though no objection was made and no ruling made or preserved thereon.” (Emphasis added.) (Belfield,8 Ill. 2d at 313 .)
After examining this court’s historical application of the Belfield exception, we hold that the case at bar does not fit into the exception.
The appellate court in this case emphasized the error which resulted from defendant’s failure to call Ms. O’Dell to verify the nurse’s note. The court reasoned that, despite plaintiff’s failure to object to every question involving a reference to the nurse’s note, defendant’s refusal to call the nurse, which it apparently knew to be the only proper way to admit any evidence concerning the note, deprived plaintiff of a fair trial.
The appellate court’s analysis is faulty. This court has held that, in applying the Belfield test, we will strictly apply the waiver doctrine unless the prejudicial error involves flagrant misconduct or behavior so inflammatory that the jury verdict is a product of biased passion, rather than an impartial consideration of the evidence. (See Bruske v. Arnold (1969),
The situation in the case at bar is distinguishable from Belfield and its progeny. The cases where we applied the Belfield standard and awarded a new trial involved blatant mischaracterizations of fact, character assassination, or base appeals to emotion and prejudice. In this case, however, defendant presented the nurse’s note unembellished by inflammatory commentary, instead choosing to use the contents of the note itself as evidence that impugned plaintiff’s veracity. Plaintiff also chose not to object to two specific references in the doctors’ depositions because one instance favorably interpreted the nurse’s comments, and the other called the existence of the note into question. The statement defendant made in closing was objected to by plaintiff, and the trial judge sustained the objection and properly instructed the jury not to consider the remarks of counsel as evidence. Therefore, the jury was allowed to consider and interpret the contents of the nurse’s note in the context of the other evidence and the adversarial explanation of that evidence by the counsel for both parties. Thus, we hold that the comments regarding the nurse’s note did not rise to the level of offensiveness that the Belfield exception was designed to address. See Bruske,
We further hold that the trial court’s award of a new trial in this case was an abuse of discretion, because any errors that occurred in connection with the presentation of evidence involving the nurse’s note failed to prejudice plaintiff. Consequently, even if plaintiff properly objected to each reference defendant made to the nurse’s note during the trial and preserved the alleged errors for review, we characterize the references to the note as technical violations, and not a sufficient basis for granting a new trial because their admission did not affect any of plaintiff’s substantial rights. (107 Ill. 2d R. 615(a); see People v. Lindgren (1980),
The appellate court in the case at bar emphasized that the crucial issue in this case was plaintiff’s credibility (
The appellate court’s conclusions regarding the defendant’s use of the nurse’s note fails to put this evidence in the context of the rest of the evidence presented at trial. The jury was properly aware of plaintiff’s history of severe back problems before the incident in question. (
“Q. Did you ever treat with Dr. Jemsek for your back prior to March 9th?
A. He’s been [my] family physician for as long as I can remember, but I don’t recall any, you know, any back problems. ***
Q. Do you recall that he ever examined you at a hospital for your back in 1976, particularly April of 1976?
A. Not that I recall, no.
Q. All right. You wouldn’t deny that you were treated by him at that time for your back, would you?
A. I wouldn’t deny it, but, you know — like I say I don’t recall it at all. ***
Q. Did you tell him you had a great deal of difficulty in raising both legs without a great deal of pain in the upper thighs?
A. I don’t remember the thigh part, but I’m not saying I didn’t. Like I say, I don’t remember. ***
Q. Do you recall going to Dr. Jemsek’s office on March 7th, just a couple days before the hood accident?
A. No. I don’t remember.
Q. Okay. Do you recall complaining that on March 7th that you were fine as long as you were sitting or lying down, but when you tried to get up and move around, you had trouble?
A. No. I don’t remember that.
Q. Did you ever remember telling anyone that you had to flex your knees when you got into the truck?
A. No.
Q. Do you recall if you were limping on that date?
A. Not that I remember, no.”
We conclude that, because plaintiff failed to remember anything regarding his back problems prior to the incident in question, while Dr. Jemsek’s deposition and records clearly indicate plaintiff had a history of severe back problems, the appellate court’s theory that the nurse’s note was the only factor that affected plaintiff’s credibility in the eyes of the jury is illogical.
Viewing plaintiff's evidence deposition as a whole, we also find that the appellate court’s holding that defendant was required to call Ms. O’Dell to the stand to verify the authenticity of the nurse’s note was incorrect. We need not determine whether it was improper for defendant to fail to call Ms. O’Dell in connection with plaintiff’s equivocal response to the question regarding his statement as contained in the nurse’s note (see Purrazzo,
Moreover, even if we were to agree with the appellate court that the failure to call the nurse was otherwise reversible error, we have already observed that plaintiff failed to object to the references to the nurse’s note at the time the evidence was admitted and failed to preserve any such objection in a motion to strike. Thus, plaintiff waived all claims of error in connection with defendant’s failure to call Ms. O’Dell to verify the contents of the nurse’s note (see Kloster,
We also find insubstantial the distinction the appellate court made between the statements of Dr. Jemsek and the contents of the nurse’s note. In our opinion, the doctor’s statement describing plaintiff “flexing” his knees to get into a truck, and the nurse’s note stating that he had to “get up on his knees and pull himself up,” arguably describe the same physical procedure and the same type of disability. (See
We therefore conclude that, taking the evidence of the contents of the nurse’s note in the context of all the evidence presented at trial, the trial court abused its discretion when it granted plaintiff’s motion for a new trial.
Finally, we address plaintiff’s contention that it was reversible error for the trial judge to overrule plaintiff’s objection to defendant’s statement in closing argument regarding plaintiff’s inability to call Kevin Crouch as a witness. Although plaintiff presented this issue to the appellate court, the court did not address it in its opinion in this case. (
It is improper for a party to draw attention to an opponent’s failure to call a witness when that witness is not under the opponent’s control. (Sawicki v. Kim (1983),
However, we hold that this error was harmless. The appellate court incorrectly put its focus entirely on the issue of plaintiff’s credibility. This is not to say that plaintiff’s credibility was not an important issue in the trial. As we have already noted, plaintiff’s professed inability to recall a history of severe back problems before the incident in question already impugned his credibility. Also, the testimony of plaintiff’s co-workers tended to refute his present claim. After examining the totality of the evidence, especially the evidence contained in the two doctors’ depositions regarding plaintiff’s history of severe back problems related to injuries not connected to the incident involving the defective hood hinge, we conclude that any speculation by the jury about Mr. Crouch’s testimony would not have made any difference. In other words, no reasonable jury would have reached a contrary verdict. This satisfies our higher standard for directing a verdict or granting a judgment n.o.v. (Pedrick v. Peoria & Eastern R.R. Co. (1967),
Accordingly, we reverse the judgment of the appellate court and the judgment of the circuit court which granted a new trial, and remand the cause to the circuit court with directions to enter judgment on the jury’s verdict.
Judgments reversed; cause remanded with directions.
JUSTICE CALVO took no part in the consideration or decision of this case.